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Sunday, March 27, 2011

Copyright, Parallel Imports and Access To Education

A piece titled the "The Death of Books" sparked off a fiery debate around a proposed amendment to the copyright act. Two of us (leading technology lawyer Rahul Mathan and me) initially countered this doomsday prediction largely centred around the prospect of a phenomenon interestingly referred to as "remaindering".

In a Mint opinion piece, I argued that this was nothing more than a protectionist scream and that the onus was on publishers to demonstrate why there should be a restriction on the right of free trade. And why the section 2(m) amendment would destroy their fragile industry, as claimed.

“The ministry mandarins also seem to have the absurd belief that publishers don’t bring in current editions. Every single major book — whether a medical textbook or the latest blockbuster like a Harry Potter or Stephanie Meyer — is available the same day as its release worldwide and 35% cheaper, with textbooks being 80-90% cheaper.”

Working under the aegis of the recently formed P-PIL, we began the arduous task of empirical investigation on this count. Many weeks later, we came up with some interesting numbers which demonstrated that the claims of publishers on this count are empirically false, at least in so far as legal educational titles are concerned.

Based on these numbers, we drafted a report which was then sent to the Minister of HRD, Shri Kapil Sibal. Our report and all data (in Annexures) are available on the P-PIL website. This is the second public interest matter that P-PIL picked up, the first one being a constitutional challenge against an egregiously constituted IPAB.

A pithier account of this report is available in this opinion piece I did for the Economic Times, the key extracts of which I reproduce:

"If enacted, a proviso to section 2(m) of the Indian Copyright Act would permit the import of legitimate copies of copyright works that have been sold once anywhere in the world.

This amendment aims to foster enhanced competition amongst distributors and thereby enable Indian consumers and students to access a wider range of books at lower prices in a timely manner.

However, publishers vehemently oppose this provision, claiming that there is no 'access' issue in the country since most foreign titles boast equivalent low-priced Indian editions.

This is simply not true. Promoting Public Interest Lawyering (P-PIL), a public interest association of which I am part, unearthed data relating to the acquisition of foreign titles by leading law libraries in the country, and concluded in their representation to the HRD ministry, as follows:

Of the total 1,554 foreign titles acquired by two leading law libraries during 2009-11, there were hardly any titles with equivalent low-priced Indian editions. Even in rare cases where such editions were available, they were never the latest ones. The librarians that P-PIL spoke to categorically stated that they were not interested in purchasing outdated editions of foreign titles.

Almost all foreign titles were available for prices equal to or higher than rates prevailing in the West. These had to be imported through websites such as Amazon or procured through leading local distributors who would place orders directly with publishers abroad. The shipping charges escalated the costs for India, and in one case, the price differential between India and the US was as high as 165%.

Given this stark pricing scenario, the section 2(m) amendment is the need of the hour. For, it will foster a more diverse set of distributors keen on picking up cheaper copies from any part of the world, without seeking copyright owners' permission.

If the country's leading law schools (national law schools) are faced with this severe pricing and access issue, the vast majority of the other 913 law colleges can only be expected to be worse off, given that many of them are much poorer and do not have the necessary wherewithal to procure titles online or be serviced by the leading distributors."

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